Tamara Piety Discusses Implications of First Amendment on Pharmaceutical “Speech”

by Shaun Manning on November 23, 2011

Tamara Piety, author of the forthcoming University of Michigan Press title Brandishing the First Amendment: Commercial Expression in America, recently spoke with the Pharmalot blog on the implications of expanding First Amendment protections to corporate marketing speech, specifically as it relates to the pharmaceutical industry. At the heart of the discussion is a Supreme Court decision striking down a Vermont law that restricted data mining–in this case, records of which doctors prescribe which medicines–for marketing purposes.

Piety explained that “the data mining and pharmaceutical companies argued that Vermont’s singling out of marketing for different treatment than say, research or law enforcement was discriminatory,” a tactic that serves to “leverage the language of civil rights and political speech to suggest that somehow the regulation of marketing is discriminatory.” She went on to say that, even in the doctrines establishing protections for commercial speech in the mid-1970s, marketing speech was considered under a different set of standards due to the inherent financial incentive in such speech. While these standards are nominally in effect today, this and other recent court decisions have gone a long way toward eroding the boundaries that separate marketing from other speech under the First Amendment.

“For most of our history, we have thought it appropriate to regulate marketing and to treat commercial speech differently than expressive or political speech,” Piety said. “This ruling suggests it’s not appropriate to make that distinction.”